Legal Status of Children Born Out of Void and

Voidable Marriages

FAMILY LAW 1
MODULE 4 - 1
 Legal Status of Children Born Out of Void and Voidable Marriages

The truth is, all the children born out of valid marriage or void marriage or voidable marriage
are legitimate.
• Section 16 of the Hindu Marriage Act, 1955, discusses the legal status of children born out of
the void and voidable marriage.
• Section 16 (1), states that if a marriage is declared null and void under Section 11 of the Hindu
Marriage Act, 1955, then any child born out of such marriage shall be legitimate because he
would have been legitimate if the marriage had been valid.
• Section 16 (2) states that where a decree of nullity is granted in respect of a voidable marriage
under Section 12 of the Hindu Marriage Act, 1955, then a child begotten or conceived before the
decree is made shall be deemed to be a legitimate child notwithstanding the decree of nullity.
Rights of the Child Born Out of Such Marriages under the
Hindu Marriage Act, 1955

Section 16(3) states that children born out of a marriage which is

null and void or which is annulled by a decree of nullity, shall have
rights only in the property of his parents but not having any rights in
or to the property of ancestral (other person).
 Legitimacy of a child

1. Void marriages and legitimacy of children born out of it.

2. Voidable marriages and legitimacy of children born out of it.
 Legitimacy of a child - Void marriages

Void marriages
A void marriage is a marriage that took place between two such person who doesn’t
have to capacity to marriage or the marriage is in the contravention of section 5 of
Hindu Marriage Act,1955,
Section 5 clause (1) Bigamy,
Section 5 (4) Prohibited Relation, and
Section 5(5) Sapinda relation
A void marriage is not a marriage, irrespective of the fact that all the rites and
ceremonies took place.
A void marriage is void-ab-initio, which means it is void from the beginning, i.e. it
never existed.
Legitimacy of a child - Void marriages

Void marriages
Void marriages do not require a decree to get it annulled, because it is not a
marriage at all.
Void marriages do not give rise to any status of husband and wife, do not
create mutual rights and obligations.
Parties to the void marriage can remarry in case of bigamy , as marriage
never existed, so they wouldn’t be charged with the offence of bigamy.
Legitimacy of a child - Void marriages

Legitimacy of children in void marriages- According section 16 of Hindu

Marriage Act, 1955 and Special Marriage Act, deals about the legitimacy of
children born out of void marriage :

Children shall be treated as legitimate children,

They will inherit the property of their parents’ only, not the
ancestral property.
They do not have coparcenary rights.
Legitimacy of a child - Voidable marriages

Voidable marriages
A voidable marriage is a valid marriage until it is avoided by the either party.
A voidable marriage is a marriage that can be avoided at the petition of declaring
it void by either party to the marriage, and if the parties doesn’t file the petition
the marriage remains valid.
As long as the voidable marriage is not avoided, all the consequences of the valid
marriage flow from it.
Parties to the unavoided voidable marriage can not marry to the other person,
they would be charged with the offence of bigamy if they do so, as the
consequences of valid marriage flows from unavoided voidable marriage.
Legitimacy of a child - Voidable marriages
Legitimacy of children in voidable marriage-
Section 16 of Hindu Marriage Act, 1955 and Special Marriage Act, deals about the
legitimacy of the children born out of voidable marriages.
1. CHILDREN BEGOTTEN BEFORE THE DECREE IS MADE
Children begotten or conceived before the decree of nullity is made, would be
legitimate as if the decree would have dissolved rather than annulling the
marriage.
2. CHILDREN OF UN ANNULLED VOIDABLE MARRIAGE
Children born out of such voidable marriage which is not rendered
void/annulled/avoided by the either party to the marriage would be legitimate in
the same way that of children born out of valid marriage.
Legitimacy of a child - Voidable marriages

3. CHILDREN OF ANNULLED VOID MARRIAGE

Children born out of such voidable marriage that has been rendered
void/ annulled/unavoided by the either party to the marriage would
be:
• Legitimate,
• They can only inherit the property of their parents only,
• No coparcenary right is given to them.
 K Santhosha
vs
The Karnataka Power Transmission corporation
In this Case the court observed and held that :
• A child has no role to play in his/her birth. Hence, law should recognise the
fact that there may be illegitimate parents, but no illegitimate children.
• Children born from all void or voidable marriages, irrespective of the
personal laws applicable to their parents, are eligible for compassionate
appointments in government service, said the High Court of Karnataka.
• It is just and necessary to protect the rights of the children born from all void
or voidable marriages and extend the benefit of the rules or regulations
concerning compassionate ground appointments to all such children”
irrespective of personal laws